No. 05-03-00427-CR
Opinion Filed December 15, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. FO2-50865-M.
Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG
Opinion By Justice LANG.
Bruce Joseph Rattler appeals his conviction for the possession of one gram or more but less than four grams of cocaine. After appellant was found guilty by a jury, he plead true to two enhancement paragraphs and the trial court sentenced him to forty years' confinement. Appellant urges three issues. In the first two issues, appellant argues the trial court erred in denying his motion to suppress evidence obtained in violation of the United States and State of Texas Constitutions. In the third issue, appellant claims the trial court erred in denying his request for a jury instruction on the issue of whether or not the police illegally obtained narcotics evidence. We affirm the trial court's judgment.
Factual and Procedural Background
Two officers were on patrol in what they described as a neighborhood rife with narcotics activity and prostitution when one of them observed appellant handing something small to a woman who was a known prostitute. The officer concluded he might have witnessed a hand-to-hand drug transaction. One of the officers approached appellant on foot, from behind, while the other officer drove the police car to the end of the block in the direction appellant was walking. The second officer left his police car and approached appellant on foot from the front. The officers asked appellant to stop and give them his name and identification. Appellant testified that as he was walking away he heard a voice behind him say, "Sir, would you please stop?" He kept walking because there were 12 or 13 other people around. When he reached his door the officer said, "You, before you enter that apartment, I would like to speak to you." The testimony of the officers and appellant differs on several details, but they agree that at some point appellant identified himself and produced his Texas Department of Criminal Justice Identification Card. Appellant testified he remarked to the officers that there was an outstanding warrant for his arrest. The officers testified they found the warrant by running appellant's name through their computer. After the outstanding warrant on appellant was confirmed, the officers arrested appellant and searched him. They discovered a pocket purse containing baggies of cocaine and two crack pipes in appellant's pocket. Appellant moved to suppress this evidence arguing it was obtained pursuant to an illegal detention. The trial court denied his motion. The trial court also denied appellant's request for a jury instruction on the issue of whether this evidence had been obtained illegally. Appellant was convicted and this appeal followed. Standard of Review
We apply a bifurcated standard of review to a trial court's ruling on a motion to suppress, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of law to those facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Where, as here, the court did not make explicit findings of historical fact, "[w]e therefore review the evidence in a light most favorable to the trial court's ruling. In other words, we will assume that the trial court made implicit findings of fact supported in the record that buttress its conclusion." Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000) (citations omitted). Applicable Law
In his first two issues, appellant argues the cocaine was obtained in violation of his rights under the Fourth and Fourteenth amendments of the United States Constitution because it was obtained without a search warrant pursuant to an illegal detention. The State counters that there was no detention, that even if there was a detention it was legal, and even if there was an illegal detention, the evidence was admissible because it was obtained in a search incident to a valid arrest under an outstanding arrest warrant. Not every encounter between police officers and citizens implicates the Fourth Amendment. Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997). As long as the person is free to walk away, no Fourth Amendment detention occurs if a police officer merely approaches a person in a public place and asks questions. Lewis v. State, 915 S.W.2d 51, 53 (Tex. App.-Dallas 1995, no pet.). The test to determine if an encounter between a citizen and a police officer is consensual depends on "whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." State v. Velasquez, 994 S.W.2d 676, 679 (Tex.Crim.App. 1999) (citing Florida v. Bostick, 501 U.S. 429, 440 (1991). Even if an encounter is not consensual, an officer may conduct a brief investigative detention "when the detaining officer has specific articulable facts, which, taken together with rational inferences from those facts, lead him to conclude that the person detained actually is, has been, or soon will be engaged in criminal activity." Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The reasonableness of a temporary detention must be examined in terms of "the totality of the circumstances-the whole picture-must be taken into account." Carmouche, 10 S.W.3d at 328. The fact that a person is avoiding officers is a factor to consider when determining probable cause. Guzman, 955 S.W.2d at 90. The fact that the citizen is found in a neighborhood that is a high-crime area, although insufficient alone to find probable cause exists, may become an important factor when considering the totality of the circumstances. Id. Nervous, evasive behavior has been held to be a pertinent factor. Balentine, 71 S.W.3d at 769 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Even if a detention is illegal, if the connection between the initial illegality and the means through which evidence is secured is so attenuated as to dissipate the taint, the evidence is admissible. Lewis, 915 S.W.2d at 54. Generally, evidence obtained following an illegal detention is excluded under the doctrine of "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484 (1963). However, under the attenuation doctrine, evidence is not excluded if the connection between the primary illegality and the acquisition of the evidence is so attenuated as to dissipate the taint. Welcome v. State, 865 S.W.2d 128, 133 (Tex. App.-Dallas 1993, pet. ref'd). That the evidence would not have been discovered "but for" the primary illegality is not determinative. Reed v. State, 809 S.W.2d 940, 944 (Tex. App.-Dallas 1991, no pet.). The issue is whether the evidence has been obtained by exploitation of the primary illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Id. This Court has held the discovery of an outstanding warrant during an illegal detention breaks the connection between the primary taint and subsequently discovered evidence. Welcome, 865 S.W.2d at 134; Reed, 809 S.W.2d at 947. "[T]he independent probable cause evidenced by the valid arrest warrants demonstrates that the evidence found during the search of appellant's person was not discovered through exploitation of the initial illegal arrest." Reed, 809 S.W.2d at 947. Because the probable cause for a valid arrest warrant is determined independently and judicially before any allegedly illegal detention, the legal arrest of the defendant under a valid warrant purges the taint of any illegality of the initial arrest. Lewis, 915 S.W.2d at 54. Thus, evidence which is discovered in a search incident to a valid arrest has been held admissible even if the warrant has been discovered during an allegedly illegal detention. Id. In his third issue, appellant claims that there was a fact question as to whether or not the police illegally obtained the narcotics evidence. Hence, he argues the trial court erred in refusing to submit a jury instruction on the point. The applicable rule is that in any case in which the evidence raises an issue regarding whether evidence was obtained in violation of the laws or Constitution of the State of Texas or the Constitution or laws of the United States, the jury shall be instructed to disregard such evidence if it believes such evidence was obtained in violation of the laws or constitutions, or if it has reasonable doubt regarding whether such evidence was obtained in violation of the laws or constitutions. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2004). "Regardless, a trial court is required to include an Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained." Wesbrook v. State, 29 S.W.3d 103, 121 (Tex.Crim.App. 2000). If the only determination to be made is of a legal nature, not factual, then the defendant is not entitled to a jury instruction. Id. at 121. Application of Law to Facts
In his first issue, appellant argues the trial court erred in denying his motion to suppress evidence that he contends was obtained pursuant to an illegal detention. This search, he claims, was concluded in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, appellant argues the officers who detained him were operating on a mere "hunch" and "just believed" there was a drug transaction and therefore lacked reasonable grounds for an investigative detention. The State responds by arguing there was no illegal detention, but even if there were, the evidence was admissible because it was obtained in a search incident to an arrest under an outstanding warrant. In his second issue, appellant argues the denial of his motion to suppress violated his rights under Art. I, § 9 of the Texas Constitution. Appellant cites Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App. 1991) for the proposition that in analyzing this issue under the Texas Constitution courts should engage in an independent analysis from that under the United States Constitution. However, appellant then acknowledges the determination of this issue should be the same under both constitutions, and makes no argument for a different analysis. Appellant has offered nothing additional for review under this issue. See Griffith v. State, 55 S.W.3d 598, 602 (Tex.Crim. App. 2001) (holding the court would not consider the application of the Texas Constitution when appellant is not arguing that it should be applied differently from federal constitution). In his third issue, appellant argues the trial court erred by not submitting to the jury an instruction under article 38.23 of the Texas Code of Criminal Procedure regarding whether the police had illegally obtained the narcotics evidence. The State counters by arguing there was no factual issue regarding whether the evidence was obtained pursuant to an illegal detention, even under appellant's version of the facts. Moreover, the legality of the encounter, regardless of whether it is properly characterized as a consensual encounter or a detention, was irrelevant to the admissibility of the evidence. Article 38.23(a) of the Texas Code of Criminal Procedure provides that evidence that is obtained in violation of the Constitution or laws of the State of Texas or the Constitution or laws of the United States, shall not be admitted against the accused in a criminal case. Article 38.23(a) further provides that in any case in which the evidence raises an issue as to whether evidence was illegally obtained, "the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained." Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2004). A trial court is required to include an Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Balentine, 71 S.W.3d at 773 (citing Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim. App. 1986). If there is no dispute as to the facts regarding the acquisition of evidence and the only determination to be made is of a legal nature, no instruction is required. Wesbrook, 29 S.W.3d at 121. A review of the evidence in the record respecting the acquisition of the evidence will allow us to resolve the appellant's three issues. First, as to appellant's third issue, we must determine if there was a fact issue regarding the legality of the acquisition of the narcotics evidence. If there was such an issue, then article 38.23 would require submission of an instruction to the jury on that point. Second, in order to resolve appellant's first two issues, we must determine whether the encounter between the police officers and appellant was an illegal detention or whether the narcotics evidence was obtained in a search incident to an arrest under an outstanding warrant. We can ascertain if there was a factual dispute regarding acquisition of the narcotics evidence by reviewing appellant's version of the facts. Appellant testified at trial that after talking to the woman the police later identified as a known prostitute, he turned and walked away. As he was walking away he heard a voice behind him say, "Sir, would you please stop?" He kept walking because there were 12 or 13 other people around. When he reached his door the officer said, "You, before you enter that apartment, I would like to speak to you." The officer then asked appellant his name and appellant responded that he had no identification on him. According to appellant the officer said, "Well come on. Let's walk to the squad car." Appellant then told the officer his name was Bruce Rattler and the officer checked appellant's name in the computer. An outstanding warrant appeared when the officer ran appellant's name in the computer. Appellant testified that after the officer ran a check on his name the officer said, "That ain't who you are." According to appellant, he responded, "I'm Bruce Joseph Rattler. I got a warrant." According to appellant, when the outstanding warrant was confirmed, the police handcuffed him and accompanied him to his apartment where he provided them with his Texas Department of Criminal Justice Identification Card. After the police received his identification, the officer searched him. According to both the police and the appellant, appellant was not searched until after the police had obtained his identification, had confirmed the existence of an outstanding warrant, and had arrested him. Conclusion
We conclude that there was no factual dispute regarding whether evidence was obtained after appellant was identified and the outstanding warrant was revealed. The evidence appellant seeks to suppress was obtained in the search incident to his arrest on an outstanding warrant. Even if there had been an illegal detention, the discovery of an outstanding warrant during an illegal detention breaks the connection between the primary taint and the subsequently discovered evidence. Welcome, 865 S.W.2d at 134; see also Lewis, 915 S.W.2d at 54. Because there was no factual dispute regarding the legality of obtaining evidence in a search pursuant to a valid arrest, appellant was not entitled to an instruction under Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2004). Further, his constitutional rights were not violated. We resolve appellant's three issues against him. For the foregoing reasons, we affirm the judgment of the trial court.